DD v AA; DD v Lewis; DD v Pp (No 2) - [2023] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DD v AA; DD v Lewis; DD v PP (No 2) [2023] NSWCA 260
Hearing dates: 9 October 2023
Decision date: 31 October 2023
Before: White JA
Decision:
(1) Dismiss with costs the appellant’s notice of motion filed on 22 September 2023 seeking the grant of leave to file and serve subpoenas and a notice to produce.
(2) Stand over paragraph (3) of the notice of motion filed on 22 September 2023 which seeks an order that “the 22 June 2023 orders and judgement made by Griffiths AJA be set aside” to the hearing of the appeal on 17 November 2023.
(3) Otherwise dismiss the notice of motion.
(4) Stand over the “show cause listing” ordered by the Registrar on 4 October 2023 to the Court of Appeal on 17 November 2023 to be considered with the respondents’ adjourned notices of motion for summary dismissal.
(5) Order that, within 7 days, the respondents advise the appellant:
(a) whether they object to the report of Dr Dick Quan dated 3 October 2023, which is annexure D to the affidavit of Mark Barbeliuk dated 7 October 2023 and, if so, the grounds of any such objection; and
(b) whether they require Dr Quan to be available for cross-examination on the hearing of the application in paragraph 3 of the appellant’s notice of motion filed 22 September 2023.
(6) By 10 November 2023, respondents file and serve submissions in respect of the matters listed for hearing before the Court of Appeal on 17 November 2023.
(7) The costs of the hearing on 9 October 2023 in respect of the notice of motion filed by the appellant on 22 September 2023 consisting of ten paragraphs be costs in that notice of motion.

Catchwords:
CIVIL PROCEDURE – Appeals – Applications to discharge or vary orders and directions given by Judge of Appeal – No issue of principle – Applications dismissed

Cases Cited:
AA v PD [2022] NSWSC 1039
DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140
DD v PP [2022] NSWCA 98
Lewis v Doyle [2022] NSWSC 92
PP v DD (No 2) [2021] NSWSC 1312

Category: Procedural rulings
Parties: DD (Applicant)
Darren Lewis (Respondent in proceedings 23/63182)
PP (Respondent in proceedings 23/63191)
AA (Respondent in proceedings 23/63196)
Representation:
Counsel:
Applicant self-represented
Mr H Thomas-Dubler (Respondents)
Solicitors:
Applicant self-represented
Carroll & O’Dea Lawyers (Respondents)

File Number(s): 2023/63182; 2023/63191; 2023/63196
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 1039;
[2022] NSWSC 92;
[2022] NSWSC 447;
[2021] NSWSC 1157;
[2021] NSWSC 1312;
[2021] NSWSC 1524

Date of Decision:

05 August 2022

Before:

Chen J; Davies J; Davies J; Cavanagh J; Cavanagh J; Cavanagh J

File Number(s):

2021/155673 (AA)
2018/200890 (Lewis)
2018/204001 (PP)

JUDGMENT

HIS HONOUR: These applications arise in relation to three notices of appeal filed by the appellant (DD) from three judgments of the Common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 260
Decision Date: 31 October 2023

CaseChat Overview and Summary

The proceedings involved an appellant, DD, and respondents AA, Lewis, and Pp (No 2). DD sought to discharge or vary orders and directions previously given by a Judge of Appeal. The core of the dispute revolved around DD's attempts to introduce new evidence and challenge existing orders through applications for leave to file subpoenas and a notice to produce, as well as seeking to set aside prior judgments.

The primary legal issues before the Court of Appeal were whether to grant DD leave to file and serve subpoenas and a notice to produce, and whether to set aside the orders and judgment made by Griffiths AJA on 22 June 2023. The court also considered a "show cause listing" ordered by the Registrar and the respondents' adjourned notices of motion for summary dismissal.

White JA dismissed the appellant's application for leave to file and serve subpoenas and a notice to produce, finding no issue of principle that would warrant such an order. The application to set aside the 22 June 2023 orders and judgment was stood over to the hearing of the appeal. The court also made directions regarding the disclosure of objections to a report by Dr Dick Quan and the availability of Dr Quan for cross-examination, and ordered the respondents to file submissions in respect of the matters listed for hearing. The costs of the hearing on 9 October 2023 were made costs in the appellant's notice of motion.

Orders

Orders of the court

(1) Dismiss with costs the appellant’s notice of motion filed on 22 September 2023 seeking the grant of leave to file and serve subpoenas and a notice to produce.

(2) Stand over paragraph (3) of the notice of motion filed on 22 September 2023 which seeks an order that “the 22 June 2023 orders and judgement made by Griffiths AJA be set aside” to the hearing of the appeal on 17 November 2023.

(3) Otherwise dismiss the notice of motion.

(4) Stand over the “show cause listing” ordered by the Registrar on 4 October 2023 to the Court of Appeal on 17 November 2023 to be considered with the respondents’ adjourned notices of motion for summary dismissal.

(5) Order that, within 7 days, the respondents advise the appellant:

(a) whether they object to the report of Dr Dick Quan dated 3 October 2023, which is annexure D to the affidavit of Mark Barbeliuk dated 7 October 2023 and, if so, the grounds of any such objection; and

(b) whether they require Dr Quan to be available for cross-examination on the hearing of the application in paragraph 3 of the appellant’s notice of motion filed 22 September 2023.

(6) By 10 November 2023, respondents file and serve submissions in respect of the matters listed for hearing before the Court of Appeal on 17 November 2023.

(7) The costs of the hearing on 9 October 2023 in respect of the notice of motion filed by the appellant on 22 September 2023 consisting of ten paragraphs be costs in that notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DD v AA; DD v Lewis; DD v PP (No 2) [2023] NSWCA 260
Hearing dates:	9 October 2023
Decision date:	31 October 2023
Before:	White JA
Decision:	(1) Dismiss with costs the appellant’s notice of motion filed on 22 September 2023 seeking the grant of leave to file and serve subpoenas and a notice to produce. (2) Stand over paragraph (3) of the notice of motion filed on 22 September 2023 which seeks an order that “the 22 June 2023 orders and judgement made by Griffiths AJA be set aside” to the hearing of the appeal on 17 November 2023. (3) Otherwise dismiss the notice of motion. (4) Stand over the “show cause listing” ordered by the Registrar on 4 October 2023 to the Court of Appeal on 17 November 2023 to be considered with the respondents’ adjourned notices of motion for summary dismissal. (5) Order that, within 7 days, the respondents advise the appellant: (a) whether they object to the report of Dr Dick Quan dated 3 October 2023, which is annexure D to the affidavit of Mark Barbeliuk dated 7 October 2023 and, if so, the grounds of any such objection; and (b) whether they require Dr Quan to be available for cross-examination on the hearing of the application in paragraph 3 of the appellant’s notice of motion filed 22 September 2023. (6) By 10 November 2023, respondents file and serve submissions in respect of the matters listed for hearing before the Court of Appeal on 17 November 2023. (7) The costs of the hearing on 9 October 2023 in respect of the notice of motion filed by the appellant on 22 September 2023 consisting of ten paragraphs be costs in that notice of motion.
Catchwords:	CIVIL PROCEDURE – Appeals – Applications to discharge or vary orders and directions given by Judge of Appeal – No issue of principle – Applications dismissed
Cases Cited:	AA v PD [2022] NSWSC 1039 DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140 DD v PP [2022] NSWCA 98 Lewis v Doyle [2022] NSWSC 92 PP v DD (No 2) [2021] NSWSC 1312
Category:	Procedural rulings
Parties:	DD (Applicant) Darren Lewis (Respondent in proceedings 23/63182) PP (Respondent in proceedings 23/63191) AA (Respondent in proceedings 23/63196)
Representation:	Counsel: Applicant self-represented Mr H Thomas-Dubler (Respondents) Solicitors: Applicant self-represented Carroll & O’Dea Lawyers (Respondents)
File Number(s):	2023/63182; 2023/63191; 2023/63196
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 1039; [2022] NSWSC 92; [2022] NSWSC 447; [2021] NSWSC 1157; [2021] NSWSC 1312; [2021] NSWSC 1524 Date of Decision: 05 August 2022 Before: Chen J; Davies J; Davies J; Cavanagh J; Cavanagh J; Cavanagh J File Number(s): 2021/155673 (AA) 2018/200890 (Lewis) 2018/204001 (PP)